Search in ‘Judgments and decisions’


Natura 2000 provisions provide no third-party protection in favour of the owner of protected areas

Headnote

The owner of land situated in a Natura 2000 site is not entitled, in a dispute under the law concerning the respective interests of neighbours, to claim a breach of provisions of the Federal Nature Conservation Act enacted to implement Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ L 206 p. 7) - Habitats Directive (continuation of BVerwG, judgment of 26 April 2007 - 4 C 12.05 - BVerwGE 128, 358 para. 31).

Decision of 26 January 2021 - BVerwG 1 C 52.20 (uploaded on 17 January 2022)

Interruption of the Dublin III time limit for transfer due to suspension by the authorities of the execution of a deportation order on account of COVID-19 pandemic

Headnotes

Request for a preliminary ruling to the Court of Justice of the European Union on the interpretation of provisions of the Dublin III Regulation (Regulation No 604/213), seeking in particular to clarify whether the suspension by the authorities of the execution of a transfer decision according to section 80 (4) VwGO, which is issued only on account of the fact that the transfer is impossible in fact due to the COVID-19 pandemic, interrupts the time limit for transfer pursuant to article 29 (1) of the Dublin III Regulation.

In accordance with article 267 TFEU, a preliminary ruling is to be obtained from the Court of Justice of the European Union, which is asked to process the case in the expedited procedure under article 105 (1) of the Rules of Procedure of the Court of Justice, on the following questions:

1. Does suspension by the authorities of the execution of a transfer decision, which is issued revocably only on account of the fact that transfers are (temporarily) impossible in fact due to the COVID-19 pandemic, fall within the scope of article 27 (4) of the Dublin III Regulation during appeal proceedings?

2. If question 1 is answered in the affirmative: Does such a suspension decision interrupt the time limit for transfer pursuant to article 29 (1) of the Dublin III Regulation?

3. If question 2 is answered in the affirmative: Does this also apply if, prior to the outbreak of the COVID-19 pandemic, a court had dismissed an application by the asylum seeker pursuant to article 27 (3) (c) of the Dublin III Regulation for execution of the transfer decision to be suspended pending the outcome of the appeal proceedings? 

Judgment of 21 January 2021 - BVerwG 7 C 4.19 (uploaded on 23 February 2022)

Decommissioning and dismantling licence under atomic energy law

Headnotes

1. The requirement to obtain a licence for decommissioning and dismantling a nuclear installation set out in section 7 (3) first sentence AtG does not re-trigger the entire examination effort incurred during construction and commissioning of this installation and does not call into question the legally binding operating licence as a whole.

2. The scenario of a "targeted air crash" may be assigned to the residual risk as regards buffer storage areas of a decommissioned nuclear power plant used for temporary storage of low- to medium-level radioactive material (following BVerwG, judgment of 22 March 2012 - 7 C 1.11 - BVerwGE 142, 159).

Judgment of 21 January 2021 - BVerwG 7 C 9.19 (uploaded on 16 March 2022)

Challenging of an extension decision under immission control law

Headnotes

1. The cursory review to be performed within the framework of an extension decision under section 18 (3) BImSchG may also include the assessment of errors contained in the installation licence that has become final and binding if an erroneous method in the original licencing procedure continues to have an impact on the assessment as to whether the purpose of the law will be jeopardised in the event of an extension of a time limit.

2. The term jeopardising the purpose of the law in section 18 (3) BImSchG refers exclusively to the purposes of the Federal Immission Control Act stated in section 1 BImSchG.

3. The possibility of conducting a supplementary procedure in order to remedy errors (section 7 (5) UmwRG) is only excluded in the extension procedure under section 18 (3) BImSchG if it can be ruled out from the outset that the error may be remedied in this procedure.

Judgment of 30 November 2020 - BVerwG 9 A 5.20 (uploaded on 15 February 2022)

Planning approval procedure under road law (Ummeln Bypass)

Headnotes

1. Section 4 (3) second sentence UmwRG is not applicable to relative procedural errors pursuant to section 4 (1a) UmwRG (change of jurisprudence following the CJEU judgment of 28 May 2020 - C-535/18 -).

2. Under article 4 (1) (a) (i) WFD, the competent authority has the obligation to verify prior to the authorisation decision whether the project complies with the obligations to prevent deterioration and to enhance the status of bodies of water. The project developer must submit the relevant information to the planning approval authority; this information must be of a nature that ensures that the effects of the project on water can be assessed in the light of the criteria and requirements laid down in particular in article 4 (1) WFD. The information must be made available to the public concerned (following CJEU, judgment of 28 May 2020 - C-535/18 - para. 76 and 80 et seqq.).

3. A project-related deterioration of the chemical status of a body of groundwater exists, first, if at least one quality standard or one of the threshold values pursuant to article 3 (1) of the Drinking Water Directive is exceeded and, secondly, if the concentration of a pollutant the relevant threshold for which has already been exceeded foreseeably increases. The values measured at each monitoring point must be taken into account individually (following CJEU, judgment of 28 May 2020 - C-535/18 - para. 119).

4. Members of the public who maintain a domestic drinking water well in geographical proximity to the planned road are entitled to assert breaches of the ban on the deterioration of groundwater, whilst members of the public who merely use the public water supply network cannot assert such breaches (following CJEU, judgments of 28 May 2020 - C-535/18 - para. 132 et seq. and of 3 October 2019 - C-197/18 - para. 40 and 42).

Judgment of 25 November 2020 - BVerwG 6 C 7.19 (uploaded on 1 February 2022)

No individual right to demand further action by the Federal Government to prevent US drone operations in Yemen using Ramstein Air Base

Headnotes

1. In principle, duties of protection arising from basic rights on the part of the German state may also exist vis-à-vis foreign nationals living abroad and if, in the event of impairments of or threats to basic rights caused by other states, there is a qualified connection to German territory, provided that, on account of the number and circumstances of breaches of international law that have already occurred, comparable acts of the other state in violation of international law can concretely be expected to also occur in the future.

2. Where actions of another state impair or threaten an interest protected under basic rights abroad, a sufficiently close connection to the German territory for duties of protection to arise from basic rights on the part of the German state only exists, if partial acts of the overall event, which have a relevant decision-making character and are therefore decisive for the legal assessment, take place in Germany.

3. When assessing the actions of other states under international law, the Federal Government has a margin of appreciation within the range of justifiable legal opinions.

4. In cases with a foreign connection, the breach of a duty of protection arising from basic rights can only be established where the Federal Government has remained completely inactive or if the measures taken are obviously completely unsuitable or inadequate.

Judgment of 17 November 2020 - BVerwG 1 C 8.19 (uploaded on 20 December 2021)

International family protection in Germany even with refugee status in another EU Member State

Headnote

The granting of international protection by another EU Member State does not prevent the granting of international family protection derived from a family member entitled to protection. Section 29 (1) no. 2 AsylG does not apply in the cases under section 26 (5) first and second sentence in conjunction with (1) to (3) AsylG.

Judgment of 5 November 2020 - BVerwG 3 C 12.19 (uploaded on 14 September 2021)

Consent to performance of preimplantation genetic diagnosis

Headnotes

1. Ethics commissions for preimplantation genetic diagnosis do not have any margin of appreciation when assessing whether the conditions for a high risk of a severe hereditary disease pursuant to section 3a (3) first sentence no. 2 in conjunction with (2) first sentence ESchG are met.

2. It is necessary to decide separately in each individual case whether the conditions of a high risk of a severe hereditary disease within the meaning of section 3a (3) first sentence no. 2 in conjunction with (2) first sentence ESchG are met. A hereditary disease is to be classified as severe in particular if the relevant condition differs significantly from other hereditary diseases in a reduced life expectancy or in the severity of the disease pattern and difficulty of treatment.

3. If it is unclear whether a hereditary disease is to be classified as severe based only on the expected manifestation of the disease in the offspring due to the genetic disposition of at least one parent, additional burdens on the affected woman or couple that are associated with the genetic disposition also have to be taken into account.

Judgment of 7 October 2020 - BVerwG 2 C 19.19 (uploaded on 22 February 2022)

Gender-neutral deduction of capital amounts for service periods of intergovernmental deployment

Headnotes

1. The conversion of capital amounts into pensions using gender-specific mortality tables according to section 56 (3) third sentence BeamtVG 2009 in conjunction with section 55 (1) ninth sentence BeamtVG 2010 and the table relating to section 14 (1) fourth sentence BewG 2008 breaches the principle of equal pay guaranteed by EU law in article 157 TFEU.

2. In calculating the relevant capital value under section 55 (1) ninth sentence BeamtVG 2010 in conjunction with the table relating to section 14 (1) fourth sentence BewG the incompatibility of national provisions with article 157 TFEU does not in principle lead to an average value being applied but to the multiplier of the capital value applicable for women being applied to men as well (so-called "upward harmonisation").

Inclusion of general administrative costs in meat inspection fee

Headnote

When assessing fees for official ante-mortem and post-mortem inspections pursuant to article 27 (2) and (4) in conjunction with Annex VI of Regulation (EC) No 882/2004, it is permissible to also take into consideration the portion of costs for wages and salaries of the staff involved in the administrative processing and the collection of fees for the inspections performed.

No results found. The decicion text is usually several weeks after the delivery of a judgment.

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